The vast majority of U.S. international agreements today are made by the President acting alone on behalf of the United States. Little noticed and rarely discussed, the agreements are negotiated and concluded in a process almost completely hidden from outside view. No single actor is responsible for this state of affairs. It is instead the result of a deep, long-term, and largely hidden transformation. Over the course of more than a century, Congress gradually yielded power to the President to make international agreements. Each individual delegation of authority relinquished only a small measure of power, while freeing members of Congress to focus on matters that were more likely to improve their reelection prospects. But the cumulative effect over time left Congress with little power over international lawmaking.

This imbalance of power over international lawmaking is inconsistent with basic principles of democratic governance. The President should be the leading actor in creating binding international legal commitments for the United States - but not the only actor. The current lawmaking process does not provide for genuine cooperation among the branches of government. Instead, a single branch of government is able to make law over an immense array of issues - including issues with significant domestic ramifications - by concluding binding international agreements. This imbalance of power not only violates democratic principles, but may even lead to less favorable and less effective international agreements.

To correct this imbalance, this Article proposes a comprehensive reform statute that would normalize U.S. international lawmaking by reorganizing it around two separate tracks. International agreements that are now made by the President alone would proceed on an administrative track and would be subject to what might be called an “Administrative Procedure Act for International Law.” This new process would offer greater openness, public participation, and transparency, but not overburden lawmaking. A legislative track would include two existing methods for concluding international agreements: Senate-approved Article II treaties and congressional-executive agreements expressly approved by both houses of Congress. In addition, it would include an expanded “fast track” process that would permit streamlined congressional approval of agreements. Together, these proposals promise to create a more balanced, more democratic, and more effective system for international lawmaking in the United States.

Friday, September 11, 2009

Jens David Ohlin (Cornell Univ. - Law) has posted The Torture Lawyers (Harvard International Law Journal, forthcoming). Here's the abstract:

One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda approving the use of torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by a general confusion in U.S. law over the necessity defense. Second, this Article therefore argues that necessity, when properly understood, constitutes two separate defenses, one a justification and the other an excuse, each with its own standard. The necessity justification does not apply to government agents who tortured detainees, though necessity as an excuse might apply under certain conditions. However, excused necessity - like all excuses - does not generate a corresponding exculpation for accomplices, like the torture lawyers, who might be said to have aided and abetted the principal perpetrators. Third, the Article questions the usual assumption of lawyers that they are only liable as accomplices if they supported their client’s criminality through frivolous legal arguments, though even under this standard the torture lawyers might face accomplice liability for some of their arguments. Finally, commentators are wrong that such prosecutions would be unprecedented. The United States itself prosecuted Nazi officials at Nuremberg for their failure to properly advise the Reich that their conduct violated international law.

We, the editorial board of the Indian Journal of International Economic Law (IJIEL), 2009-10, produced by students of the National Law School of India University (NLSIU), Bangalore are proud to invite submissions for the third issue of the journal from academicians, scholars and graduate students on topics relating to International Economic Law.

IJIEL is an annual journal that is managed, edited and produced by students of the National Law School of India University (NLSIU), Bangalore – India’s premier law school. This refereed journal focuses on the recognition of the staggering impact of WTO and international trade and commerce particularly in developing countries. That is not to say, however, that we restrict ourselves to WTO law and international trade law. Our mandate extends to all academic scholarship relevant to International Economic Law, including international finance and taxation, cross-border regulatory reform in light of the credit crisis, questions concerning the linkages between trade, human rights and the environment, international competition law, economic aspects of IP rights and TRIPS, etc.

We are particularly interested in law and economics analyses of the all the subject areas within our mandate. We pride ourselves on being one of the few legal journals which focuses on these issues from a developing country perspective.

The first two issues have been a tremendous success in terms of the breadth and quality of the submissions that we have received and been privileged to publish. We have been fortunate to receive the enthusiastic support of stalwarts in the field of International Economic Law. Professor Jagdish Bhagwati has written the foreword for our first issue. The foreword for our second issue has been written by Mr. Arvind Subramaniam from the Peterson Institute. Professor Andrew T. Guzman, Professor Yuji Iwasawa and Ms. Jayashree Watal are members of the journal's editorial board. Recently, we have also received the patronage of the WTO Chair established in NLSIU by the Ministry of Commerce of the Government of India.

Our circulation policy has targeted leading international law firms such as Allen & Overy, Clifford Chance, Linklaters and Norton Rose, legal practioners, universities, academic research centres and government bodies in India and abroad, providing us with enormous academic and geographical reach. We are also in the process of negotiating a tie up with the Social Science Research Network (SSRN) to enable us to further extend our circulation.

Submission Guidelines

i) All submissions are to be made via e-mail as .doc documents (Microsoft Word 2003 or 2007) by January 31st, 2010.

ii) We follow the Harvard Blue Book – A Uniform System of Citation (18th edn.) style of referencing and request authors to comply with the same.

iii) For full length articles the word limit is 10,000-12,000 words, though we appreciate brevity. The word limit for graduate and doctoral theses by currently enrolled postgraduate students is 7000-8000 words, and the articles should take the form of case reviews, legislative analyses, short comments or short articles.

iv) We do not accept submissions from undergraduate students. A new Law in Focus section has been introduced where practitioners are invited to briefly describe and opine on recent legislations/ ground breaking cases which have been landmark changes in their respective jurisdictions. The word limit for such entries is 3000-5000 words.

v) We wish to minimize usage of paper and therefore accept only electronic submissions.

vi) All submissions may be e-mailed to the following address: ijiel@nls.ac.in. We look forward with eager anticipation to receiving your submissions.

Economic globalisation and universal human rights both have the aspiration and power to improve and enrich individuals and communities. However, their respective institutions, methods, practices and goals differ, leading to both detrimental clashes and beneficial synergies. David Kinley analyses how human rights intersect with the trade, aid and commercial dimensions of global economic relations, taking the view that, while the global economy is a vitally important civilising instrument, it itself requires civilising according to human rights standards. Combining meticulous research with highly informed views and experiences, he outlines the intellectual, policy and practical frameworks for ensuring that the global economy advances the ends of human rights, argues for better exploitation of the global economy’s capacity to distribute as well as create wealth, and proposes mechanisms by which to minimise and manage the socially debilitating effects of its market failures and financial meltdowns.

From the viewpoint of the constitutional crisis in Europe, slow UN reforms, difficulties implementing the Kyoto Protocol and the International Criminal Court, and tensions between human rights and trade, Mireille Delmas-Marty's 'journey through the legal landscape' of the early years of the 21st century shows it to be dominated by imprecision, uncertainty and instability. The early 21st century appears to be the era of great disorder: in the silence of the market and the fracas of arms, a world overly fragmented by anarchical globalisation is being unified too quickly through hegemonic integration. How, she asks, can we move beyond the relative and the universal to build order without imposing it, to accept pluralism without giving up on a common law?

Neither utopian fusion nor illusory autonomy, Ordering Pluralism is her answer: both an epistemological revolution and an art, it means creating a common legal area by progressive adjustments that preserve diversity. Since an immutable world order is impossible, the imaginative forces of law must be called upon to invent a flexible process of harmonisation that leaves room for believing we can agree on - and protect - common values.

This article casts light on the international law aspects of a largely unrecognized occurrence in armed conflict: sexual violence against men. The article discusses causes and consequences of such violence, and assesses pertinent aspects of international law. The article argues that, to reduce and prevent sexual violence against men in conflict settings, international law should be interpreted, applied, and enforced in ways that delegitimize the prejudicial and discriminatory conceptions of gender, sex, and (homo)sexuality that often fuel such violence in the first place. Toward this aim, the article highlights why it is necessary to use a definition of sexual violence that encompasses, among other things, violence targeting an individual's imputed, perceived, or actual sexuality. In addition, the article provides a prosecution roadmap, sketching the conventional and jurisprudential standards for sexual violence to be prosecuted as a constituent element of genocide, crimes against humanity, and war crimes. The article concludes by suggesting two additional ways to enhance protection: treaty drafters should explicitly recognize men as a class of victims, and a postulated jus cogens norm should be expanded to include all forms of sexual violence against men, women, and children.

Since 2000 the International Law Commission (ILC) has been working to codify, in a series of draft articles, the law on the responsibility of international organizations (IOs). This topic considers the nature of internationally wrongful acts committed by IOs. Can IOs violate international law in the same manner as states? If not, are they bound by a subset of the norms governing state conduct? This fall, the Sixth Committee of the UN will consider draft articles adopted on first reading on the responsibility of IOs.

The American Society of International Law’s International Organizations Interest Group, Seton Hall Law School, and the Center on International Cooperation at NYU, are co-sponsoring an Experts Workshop on the Responsibility of International Organizations to take place in New York, on October 30, 2009. We invite scholars writing in the area to submit works in progress to present at the meeting which will be attended by members of the International Law Commission, Diplomats involved in Sixth Committee negotiations, and academics. The experts’ workshop will address the following themes:

1. Whether and what sort of countermeasures are permissible against an IO that has committed an internationally wrongful act. (Draft Article 19)

2. The extent to which IOs share responsibility with their member states for acts taken pursuant to an IO's decision or recommendation. (Draft Article 5)

3. Whether the European Court of Human Rights' decision in the Behrami and Saramati case was correct. In that case the court held that acts by soldiers in KFOR and UNMIK were attributable to the UN and not the member states of which the soldiers were nationals.

4. Judicial review of the Responsibility of International Organizations.

The conference organizers are seeking a suitable venue for the publication of some of the papers presented at the workshop. If you are interested in being considered for participation, please send your proposal (indicating which substantive theme your paper addresses), a CV, and a draft of the paper, to Kristen Boon at Kristen.boon@shu.eduand Jacob Cogan at jacob.cogan@uc.eduby October 1, 2009. Due to limited funds, the conference organizers cannot pay the expenses of participants, although every effort will be made to award partial stipends where needed.

The article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is also applicable to civilian superiors, but the discourse has invariably focused on civilian leaders of military or paramilitary organizations. Moreover, there has never been a detailed analysis of the doctrine’s relevance and applicability in civilian settings. The article argues that the claim that superior responsibility extends to civilians, and moreover to civilian settings, is inaccurate as a matter of a customary law. In judicial practice (including recent rulings), civilians have rarely been convicted under the doctrine even as leaders of military organizations, and when they have, this conviction was generally secondary to their direct responsibility. The article elaborates various challenges to the application of the doctrine in civilian settings, particularly in the determination of the existence of a superior-subordinate relationship. Despite the difficulties in transposing the doctrine to the civilian sphere, the article argues that as a matter of policy civilians should also be subject to the doctrine. It also argues that the normative distinctions between civilians and military superiors, today entrenched in Article 28 of the ICC Statute, is neither absolutely necessary nor practicable.

This report examines the impact of certain investment agreements on government decision-making. Primarily, it examines the impact of bilateral investment treaties (BITs) concluded between European Community (EC) member states and Andean Community (CAP) states. Additionally, it examines the impact of the investment provisions of Economic Partnership Agreement. The analysis focuses on CAP states and, in some respects, on government decision-making in strategic sectors.

Does the rise of international arbitration signify a retreat of the State from classical adjudication‘ In examining this question, it is important to distinguish contract-based arbitration of individual claims against the State from arbitration pursuant to investment treaties. The firmer is broadly limited to the private sphere of the State's activity, whereas the latter gives arbitrators a comprehensive jurisdiction over public law. An elaboration of this distinction, and the grey area within it, demonstrates that the significance of international arbitration for juridical sovereignty is its privatization of the authority to define the very concept of the public sphere.

Alan Scott Rau, Evidence and Discovery in American Arbitration: The Problem of “Third Parties”

Daniel J. Rothstein, A Proposal to Clarify U.S. Law on Judicial Assistance in Taking Evidence for International Arbitration

1958 Report of the U.S. Delegation to the United Nations Conference on International Commercial Arbitration

Richard W. Hulbert, Shades of Yesteryear: A Note on the 1958 U.S. Delegation Report on the New York Convention

Yulia Andreeva, How Challenging Is the Challenge, or Can U.S. Courts Remove Arbitrators Before an Arbitration Has Come to an End?

Reinmar Wolff, Judicial Assistance by German Courts in Aid of International Arbitration

Koji Takahashi, Jurisdiction to Set Aside a Foreign Arbitral Award, in Particular an Award Based in an Illegal Contract: A Reflection on the Indian Supreme Court’s Decision in Venture Global Engineering

Hans Smit, Annulment of an Arbitral Award and Its Subsequent Enforcement: Two Recent Decisions

This volume argues that international human rights law has made a positive contribution to the realization of human rights in much of the world. Although governments sometimes ratify human rights treaties, gambling that they will experience little pressure to comply with them, this is not typically the case. Focusing on rights stakeholders rather than the United Nations or state pressure, Beth Simmons demonstrates through a combination of statistical analyses and case studies that the ratification of treaties leads to better rights practices on average. By several measures, civil and political rights, women’s rights, a right not to be tortured in government detention, and children’s rights improve, especially in the very large heterogeneous set of countries that are neither stable autocracies nor stable democracies. Simmons argues that international human rights law should get more practical and rhetorical support from the international community as a supplement to broader efforts to address conflict, development, and democratization.

François Bugnion (formerly, Director of International Law and Cooperation, International Committee of the Red Cross) will speak today at the British Institute of International and Comparative Law on "The ICRC and the Geneva Conventions." This is the first in a series of seminars on the Geneva Conventions of 1949 in celebration of the sixtieth anniversary of their adoption.